South Africans, use the Powers you Possess

The Joint Constitutional Review Committee was set up in the aftermath of the 27 February 2018 resolution in the National Assembly on expropriation without compensation (EWC).

It was tasked with nationwide consultations on whether section 25 of the Constitution was adequate in its current form to effect EWC, or if a constitutional amendment was necessary.

The Joint Committee has to date embarked on its programme of eliciting written and oral submissions, a process that culminated in oral presentations in Parliament from 4 to 7 September 2017. Thirty-four organisations were invited to make presentations based on their written submissions, and all were afforded an opportunity to engage members of the Committee. The organisations presenting ranged from Grain SA and the National African Farmers Union, to COSATU, Orania, Black First Land First, AfriForum and a host in-between, including academics and members of the legal fraternity.

Responses, retorts and rejoinders came thick and fast from the benches of MPs, with the EFF leading the pack. Most of its questions of clarity to various presenters were preceded by its party dogma on nationalisation of land, in addition to its racial taunts. Other political parties largely abided by the rules set by the Chair and kept to clarificatory questions.

As an observer to this parliamentary process, it was patently obvious that the “land question” ranks as one of the most significant political questions in contemporary South Africa. Presentations were passionate and detailed and virtually every input agreed on the imperative for land reform as a starting point. In the language of conflict studies, let this significant point of agreement not elude us as a basis to both build consensus and a programme of action that addresses past injustices and crucially ensures that access to property rights is widened and deepened as a vital cornerstone of a growing rural and urban economy. The net effect of such a programme of action must assuage the pain of the past and build the basis of a shared future. Anything less will destroy the fragile status quo.

Presentations broadly fell into two camps, for or against the necessity for an amendment to section 25, much of which has already been covered by the media. The former group highlighted government’s political and governance failures to use its existing constitutional powers to give effect to land reform. The latter group argued largely from a hard-line ideological perspective that all land must be nationalised and fall within the ambit of State custodianship. Additionally, a small number of organisations took centrist positions and phraseology including special purpose vehicle, blended models and flexibility were espoused. The FW de Klerk Foundation has, in its own written submission to Parliament elucidated what a special purpose vehicle might look like and what outcomes might be achieved if this route is pursued.

The prism of culture, identity and traditional access and ownership of land emerged in the submissions by the National House of Traditional Leaders (NHTL) and Indigenous First Nation Advocacy South Africa (IFNASA). The NHTL urged effective use of existing means to hasten land reform, while the title of IFNASA’s submission provides the tone and content of its submission: Will the San and Khoi forever be constrained by the fraudulent legal framework of the SA Constitution’s Section 25(7)? Never Again! Responses from the EFF benches were sharp and critical, especially in respect of gender discrimination in traditional areas, including the Ingonyama Trust. The NHTL, while favouring nationalisation, were firm in that it was ‘hands-off’ land held and managed by traditional authorities.

Hard economic realities were highlighted on the final day of the oral hearings in Parliament by the Banking Association of South Africa (BASA), Business Unity South Africa (BUSA), Nedbank and AfriBusiness. The substance of the input of the sector was that the imperative for land reform and the need to address the inequalities in society were not in dispute but that, in the words of the CEO of BASA, Cas Coovadia,“…amending section 25 of the Constitution has the potential to undermine property rights and risk homeowners’ investments”. He added that, “Banks have invested over R1.6 trillion into property loans and these are investments of depositors, the money of the people in this country”. Tampering with property rights, they pleaded with MPs, would have a devastating effect on the economy by destabilising the banking sector and effectively leading to a ratings downgrade of the country’s sovereign debt. By way of affirmative action, BASA urged the Committee to embark post-haste on the commission of a comprehensive land audit, in addition to creating the office of an ombudsman to oversee land reform.

The idea of a dedicated and well-capacitated overseer of land reform was also highlighted on 5 September, when the National Association of Democratic Lawyers urged government to set up a land commission to presumably serve a similar function as envisaged by BASA. The proposal to create a special vehicle to oversee and manage land reform might have its roots in a growing cynicism about government’s political commitment to effect land reform over the last two decades, with weak State capacity and fiscal constraints further compounding its problems.

Predictably many submissions referenced the Expropriation Bill, which rather ironically was temporarily shelved a few days prior to these hearings. Its passage, they argued, would build a body of jurisprudence on fleshing out just and equitable compensation in addition, perhaps, by test cases being argued before the Constitutional Court.

The continuous influx of people to urban areas is a sensitive matter in the debate on land. While few submissions focused on this issue, in its submission, Phuhlisani NPC highlighted the imperative for identifying well-located urban land and securing rights. Phuhlisani’s submission contained the following analysis, “…between 1994 and 2014 the South African government provided more than 2.5 million houses and some 1.2 million serviced sites, but the housing backlog nevertheless increased over this same period from 1.5 million to 2.1 million units, while the number of informal settlements went from 300 to 2 225”. This pressure on metropolitan areas, where most income is earned, needs urgent attention.

Urbanisation is a global reality and South Africa is no different from this global norm. The response of government to identify suitable land and crucially secure these rights could offer millions the prospect of joining legions of people in using title to innovate, borrow and potentially expand these assets.

The Constitutional Review Committee has an arduous task on its hands in considering the issues of expropriation, compensation and crucially that of whether to amend section 25 of the Constitution. The view of the majority making presentations in Parliament veered toward reinforcing the position that a deficit in section 25 did not exist but that land reform can well take place within a renewed legislative, administrative and fiscal framework – none of which requires tampering with the Constitution. On the contrary, the frustration that was expressed was the failure of government to use the powers it has within its grasp.

On 12 September 2018, the Committee will receive an updated analysis of both written submissions and a draft report on the provincial public hearings and of the oral presentations outlined above. Its task will be to consider all the submissions from tens of thousands of concerned and anxious South Africans. It will also, no doubt, have to consider political considerations, including the matter of the upcoming elections in 2019. One hopes though that uppermost in its mind is resisting what SARB Governor Lesetja Kganyago said to avoid, “the temptation to pursue economic policies that have short-term, populist benefits but long-term costs”.

The same caution rings true for pursuing populist political and social policies that will ultimately hurt rather than heal, and may sadly result in an egalitarian disaster. The wrapping up of the process, and the pronouncement of next steps, anticipated by end September, are unlikely to be met. The review process served in some ways as a referendum on a critical question confronting the government and people of the country. The stakes are too high to let the process drag. The risks to the body politic, the economy and crucially, to the social fabric, are already costing South Africa dearly.